Serious Question For Smiffy99

[Agent Smith]

Hello Smiffy, if you don't mind I would like to put your legal expertise to the test.

I appreciate that this is not computer related, but I would definitely class it as "Consumer Related". I will of course avoid naming the relevant parties.

I have an appointment tomorrow morning with my local Trading Standards people. Basically, last night, I purchased 2 packs of cigarettes (disgusting habit I know, but it's my choice) from a local petrol station. This petrol station is one of the larger well known companies and is a combined 24 hour grocery store with a large supermarket chain.

I opened the first pack this morning, and was immediately alerted to the strange taste. During the course of the day, I came to the conclusion that the cigarettes were not, in fact, the genuine item. I have spoken to the manufacturers on the phone, and they have, albeit with the caveat of needing to test a sample, confirmed my suspicions that the cigarettes are indeed counterfeit (not just imported foreign ones).

I will be handing over the remaining product and making a statement to the Trading Standards people tomorrow, but my question to you, if I may be so bold, is what is likely to happen here? Assuming I am found to be correct, will I be entitled to a replacement genuine product? Or even, given the fact that the companies involved are very large, any sort of compensation.

Thanking you in advance.

Regards. Mr. Mouse.

[Smiffy99]

Well, thanks for that! First one off and it is not an easy one, but as I smoke I can immediately see the importance of your question!

Also, please understand this is not an "expert" opinion, just mine in reading it through in the last half hour or so.

First there is a wealth of Trade Mark legislation that would obviously be breached and to do so is a criminal offence. (Trade Marks Act 1994 s.92 (1) (a-c)

which provides

1) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor—

(a) applies to goods or their packaging a sign identical to, or likely to be mistaken for, a registered trade mark, or

(B) sells or lets for hire, offers or exposes for sale or hire or distributes goods which bear, or the packaging of which bears, such a sign, or

© has in his possession, custody or control in the course of a business any such goods with a view to the doing of anything, by himself or another, which would be an offence under paragraph (B).

(Proprietor is the owner of the trade mark - not the shopkeeper)

The legislation goes on to cover other scenarios but the basic position is that "Possession" of such goods in the course of a business is probably going to be an offence punishable by a fine or 6 months at magistrates or if Crown Court then ten years (Take him down)!!

Trading standards are not going to be your best bet though, & I would urge you to consider contacting the local weights and measures authority whose duty it is to enforce this.

Talking of Duty... Customs & Excise will also be very interested as no doubt both duty and VAT will have been avoided.

There is also a breach of the Sale of Goods Act itself. s.12(1) provides that there is an implied term that the seller has the right to sell the goods. In one case some 3,000 cans of condensed milk were found to be in breach of a trade mark and as the trade mark holder had the right to an injunction to prevent sale (although did not do so) the actual seller had no right to sell them, therefore a breach of s.12(1) SOGA. (Niblett v Confectioners Materials Co Ltd [1921] 3 KB 387 - The exact situation you are faced with.

Also you could have a breach of s.14 "implied terms as to quality or fitness" as one would assume that the quality was not that of the genuine product. however, this may be ambiguous and is just in for good measure.

Moving on from the statuory provisions you have a common law breach of contract. you contracted to buy "Brand A" cigerettes. You got "FAKE Brand A" - a totally different thing from that which you contracted to buy, etc etc.....

So, you have all the offences and breaches that you could think of - what are your remidies? well, not much that £10 wont cover I am afraid. Compensation is a means of placing you back into the position you would have been in if the offence or breach had not occured and that is basically the cost of two packets of fags. Damages on the other hand may offer a little more and if you were to bring an action you may be awarded aggrivated damages due to the criminal nature of the situation, but I would think the scenario would be one of the employees has stuck a load of fake fags into stock to cover his dipping into the till. I cannot really see how any court would really beleive that "Tesburys" would knowlingly participte in such practice.

Speak to trading standards and perhaps weights & Measures and see what they say and then, perhaps rather than a "formal" complaint you could then approach the company concerned who I am sure would offer a little more than two packets of fags!

Does this help at all? marks out of 10?

[Smiffy99]

I will have to make sure I turn code off in future!!!

Should be

B) Sells or lets for hire....

C) has in his possession....

Under paragraph B

[Tankus]

You have to wonder how they source the fags....?

Was it a major retailer ....or a chain that franchises out ......?

[Agent Smith]

OK, let's answer Tankus first. I cannot, for obvious reasons, at the moment reveal the company names. I suspect that it is probably a franchised outlet, however all the delivery lorries I have seen there are apparently official company delivery trucks. Also, add to that the fact that the merchandise sold within, is to a large extent branded with the company's logo, I suspect that even as a franchise they are required to obtain all their products from the official source.

Thank you for taking the time to answer Smiffy99. I am most grateful.

Initially, I was extremely :censored: , but I have started to calm down a bit now. As I stated earlier, I have already been in touch with the manufacturer, and it was they that suggested I contact TSO. They gave me the alternative of sending the items to them, who after testing and proving my thoughts correct, would then pass it on to TSO themselves. They now have a record, and have logged a complaint, so I guess I cannot now just go to the sellers head office, and see if I can obtain some "hush money" :( :P

My local TSO have responded remarkably well, I thought. When I initially called them, they had closed for the day, and I left a message with a receptionist. They did however call me back within an hour (so I have to assume they are taking this quite seriously), instead of in the morning as I was led to expect. The Officer concerned has stated that he will be purchasing the same brand from the retail outlet this evening, in the hope of being stitched up himself.

I will, of course, discuss with him in the morning, the procedures they will put in place, but he has already mentioned Customs and Excise, so I think I have a guy who is pretty serious about his work.

I also have to agree, that I cannot in any way imagine the actual parent company to be involved in this, but as you say, it is probably a member of staff "topping up". Still, having said that, I am sure that as a "parent" of the outlet, they must hold some responsibility. I used to be a licensee, and as such, had to tread very careful ground with the paperwork to show due diligence when it came to training staff in the correct procedures. Even after all that though (you could have got a member of staff to sign 2000 forms saying he had been trained and instructed not to sell alcohol to minors), if a minor had purchased alcohol in my premises, contrary to licensing regulations, then I would have been held responsible.

On that basis, and the extreme trauma I have suffered (only a smoker will understand what I mean by that), I would think it nice to be able to gain some form of financial recompense. About £2000.00 should do I think :o :P :D

I will of course let you know how this develops.

Thanks once again. Mr. M.

I should add, that of course I will not consider your comments to be legally binding. How could I, you have not charged a fee.............................yet. :P :D :lol:

[Agent Smith]

PS Smiffy99, with regard to your signature, did your really lose your business? B)

Mr. M.

[Smiffy99]

I think there may be a little lost in the translation on the Giga site, the translation i have (Taken from the book "lawyers latin") is;

"I attend to others people's affairs; Baffled with my own" which is a bit of a private joke with some of my university friends. I would often be called up at all hours to assist with PC problems or be asked to build them and of course this was far more interesting than getting to grips with "Can you own a corpse" or "Directors Duties" and Rights of minority shareholders" or, pertinent to this "Nemo Dat Quod Non Habet" and so I ended up spending more time on others problems than i should have done.

Still, 10/10 and I wondered how long it would take before someone commented!

[Smiffy99]

P.S. I was self employed and very nearly did go under due to a very problematical partner. I was in property for 15 years and it was there that I developed my taste for the law - it is one thing getting screwed, quite another to know how to, shall we say "retalliate" legally.

[Agent Smith]

Nemo Dat Quod Non Habet

:( How true this is.

Sorry, I translated your sig as "I attend to the business of others. Having lost my own" :unsure: My Latin is very rusty. Nearly 25 years since I left school :blink:

Mr. M.

[Andy-2004]

I know a little bit of latin....I do it in school...

Im only in my third year of it but i could have told you that "curo" Means "I run"

The "o" ending giving you the "I" part same as

(present tense)

-s=you

-t=he/she

-mus=we

-tis=you (pl)

-nt=they

:P

[-pops-]

When I was a student in Nottingham (many, many years ago), I took a vacation job at the tobacco factory (Players) one year. The summer vac. was their busy time preparing for Christmas.

It was a well known tradition there that on the last day of employment the students would "doctor" the tobacco and a common thing to do was to put condoms (both new and used) in with the tobacco leaves as they went into the shredder to make cigarette tobacco.

The rubber containing cigarettes would end up in the fancy tubs and gift packs that used to be sold for Christmas gifts.

Mr Mouse, did these cigarettes taste of burning rubber?

[christmascracker]

It was a well known tradition there that on the last day of employment the students would "doctor" the tobacco and a common thing to do was to put condoms (both new and used) in with the tobacco leaves as they went into the shredder to make cigarette tobacco.

YUK :wacko:

[Besty]

It was a well known tradition there that on the last day of employment the students would "doctor" the tobacco and a common thing to do was to put condoms (both new and used) in with the tobacco leaves as they went into the shredder to make cigarette tobacco.

YUK :wacko:

Indeed

[-pops-]

Another good reason not to smoke :blink:

[Andy-2004]

Another good reason not to smoke :blink:

there cant be enough good reasons not to smoke :)

[Sir Radfordin]

Are there any good reasons to smoke?

(unless you have money invested in a tobaco company!)

[Besty]

Are there any good reasons to smoke?

(unless you have money invested in a tobaco company!)

I wouldnt even think of this as a good resaon

[Guest ellas]

whatever the reasons to smoke or not this thread is going off topic,please keep to the topic and start another thread if you want to debate reasons not to smoke.

[-pops-]

I may well have been the one responsible for this thread veering off course, for which I apologise, but there was a relevant point raised in my first contribution here:

Did the cigarettes taste of burning rubber? If they did, I offered a possible answer.

[Agent Smith]

I may well have been the one responsible for this thread veering off course, for which I apologise, but there was a relevant point raised in my first contribution here:

Did the cigarettes taste of burning rubber? If they did, I offered a possible answer.

:D :P No it was not rubber they tasted of :D I shall leave you to guess what it was :lol:

Mr. M.

[-pops-]

They did say that some cigarettes were made from the by-products of camels. They even marketed a brand to emphasise this. :)